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Kirby’s lecture on separation of powers

Your Lordships, members of the Bar, I welcome you once more to the opening session of the Court of Appeal for 2017.


We have another heavy session before us, with fifty four appeals enrolled, of which only ten are criminal appeals, and many of the civil matters are complex with weighty records of proceedings. So I will not detain you long with these remarks. I express my gratitude to Justices Walia and Leburu whom the Chief Justice has kindly released to assist us during this session, so that where necessary three panels may sit simultaneously.


On behalf of all the Justices of Appeal, I would like to extend our condolences to the families of two of our former colleagues of the Court, who passed away in the course of 2016. They were Lord Coulsfield, who served from 2005 until 2009, and the Honourable Elijah Legwaila, who joined the Court in December 2011, and retired on account of his failing health in December 2015.  Their services to Botswana, and to this Court are greatly appreciated.


During 2016, as in previous years, there has been some commentary in the press about “executive-mindedness” in the judiciary, and particularly in this Court, so I would like to say a few words about this and about my own view as to the role of the Court of Appeal.  First, there is the separation of powers – much of the debate on this subject has arisen from comparisons with South Africa and the United States of America, whose constitutional dispensations are very different from our own.  We may learn from them in some respects, but in others we prefer not to do so.


In Botswana there is no real separation between the executive and the legislature.  The public service is led by the President and his Cabinet Ministers, who are all full members of Parliament.  Together with the other members of the House they conceive and pass all the laws which we in the Judiciary implement and interpret in the performance of our mandate. 

The true separation is between those two putative branches of Government, who are effectively one, and the judiciary which must remain independent and free of political influence, whichever party is in power.  This is notwithstanding the fact that in Botswana, as in virtually every other country in the world it is the Legislature and the Executive – the powers that be – that in the final analysis legislate for the selection of Judges.  And because of this they have the power to appoint most members of  the bodies that make such recommendations or choices.


And it is because the tenure of Judges is constitutionally guaranteed, that their independence and fair-mindedness is so important. Although there may be changes of Government, in the political sense, the members of the Judiciary remain in post, pledged to respect, implement, and interpret the laws passed by the Government of the day, without fear or favour, and protecting the rights of every citizen accorded by the Constitution. 

That is the essence of the Rule of Law.  You may be aware that the Judicial Oath, by which all Judges are bound, enjoins us to honour and respect not only the Constitution, which is supreme, but also “the laws and usage of Botswana” and that is what we try to do.
So what, then, is an “executive-minded” Judge, and what is the role of the Court of Appeal in its adjudication of disputes and controversies between citizens, between (on occasion) Government and civil society, and between powerful corporations and less-resourced
individuals?


The term “executive-minded” is often used by parties, unions, or interest groups, who have been unsuccessful in litigating a case against the Government, to describe the Judge who wrote their judgment. On the other hand, successful litigants tend to describe their Judge or Judges as “progressive”. 

So the same Judge may, depending on the circumstances be described in either way, because every case is decided upon its own facts, and upon the same laws which apply to conservatives and progressives alike. That we must accept, but dramatic departures from the norm, or ground-breaking interpretations of the law will always be the exception rather than the rule and, on balance, any Government loses more cases than it wins. This is so because, in managing such a large workforce and such a wide portfolio of duties, as every Government must, there is abundant scope for the inevitable errors and miscalculations that do occur.


The Court of Appeal, as the highest court in the land, whose decisions bring final closure to litigants and often have a significant effect on their lives, has a grave responsibility to bear.  It is expected to be a stabilising influence in society, and to make mature, measured, fair and usually predictable decisions, with which society can live for the future.

Major policy changes, as for example the abolition or retention of the death penalty, which is a punishment recognised by our Constitution, are usually better left to the elected representatives of the people to decide upon through the parliamentary process. Our responsibility, whatever our personal views may be, is to respect and interpret the laws passed by the Government of the day, and to ensure that these do not stray beyond the boundaries set by the Constitution.  If they do exceed those boundaries we must, of course, intervene, as happens from time to time, and we must do so without fear or favour.


It is perhaps because of this need for stability and certainty that usually older and more seasoned individuals are appointed to the Court of Appeal bench.  We have all been young and progressive Judges once, eager to leave our mark on the law reports with innovative and ground-breaking judgments, and to be remembered, in a sense, for having in one way or another made or changed some aspect of the law. 

It is for the Court of Appeal to steady the ship, to ensure that our judgments reflect the general expectations of society, and to see to it that to the extent that the law, and the principles of constitutional interpretation may permissibly be developed by the Courts, this is done in a gradual and responsible way so as to minimise disruptions in public life.


These of course, are my personal views, but I believe that they are shared by the other members of the Court.  We are all as you can see (and with due deference to Justice Leburu) more mature in age than most, so I hope you will be patient with us, and speak up when making your brief and concise submissions.  It only remains to wish you all a happy and prosperous New Year, and to proceed to the calling of the Roll for what I hope will be both a stable and a progressive session. *This is an address by the Judge President Ian Kirby at the opening of the January 2017 Court of Appeal session

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Botswana to Become a Vaccinated Nation: Pandemic Anxiety Over?

30th March 2021

OSCAR MOTSUMI

This is a question that should seriously exercise the mind of every Botswana citizen and every science researcher, every health worker and every political leader political.

The Covid-19 currently defines our lives and poses a direct threat to every aspect and every part of national safety, security and general well-being. This disease has become a normative part of human life throughout the world.

The first part of the struggle against the murderous depredation of this disease was to protect personal life through restrictive health injunctions and protocols; the worst possibly being human isolation and masks that hid our sorrows and lamentations through thin veils. We suffered that humiliation with grace and I believe as a nation we did a great job.

Now the vaccines are here, ushering us into the second phase of this war against the plague; and we are asking ourselves, is this science-driven fight against Covid-19 spell the end of pandemic anxiety? Is the health nightmare coming to an end? What happy lives lie ahead? Is this the time for celebration or caution? As the Non State Actors, we have being struggling with these questions for months.

We have published our thoughts and feelings, and our research reviews and thorough reading of both the local and international impacts of this rampaging viral invasion in local newspapers and social media platforms.

More significantly, we have successfully organised workshops about the impact of the pandemic on society and the economy and the last workshop invited a panel of health experts, professionals, and public administers to advance this social dialogue as part of our commitment to the tripartite engagement we enjoy working with Government of Botswana, Civil Society and Development partners. These workshops are virtual and open to all Batswana, foreign diplomatic missions based in Gaborone, UN agencies located in Gaborone and international academic researchers and professional health experts and specialists.

The mark of Covid-19 on our nation is a painful one, a tragedy shared by the entire human race, but still a contextually painful experience. Our response is fraught with grave difficulties; limited resources, limited time, and the urgency to not only save lives but also avert economic ruin and a bleak future for all who survive. Several vaccines are already in the  market.

Parts of the world are already doing the best they can to trunk the pestilential march of this disease by rolling out mass-vaccinations campaigns that promise to evict this health menace and nightmare from their public lives. Botswana, like much of Africa, is still up in the disreputable, and, unenviable, preventative social melee of masked interactions, metered distances, contactless commerce.

We remain very much at the mercy of a marauding virus that daily runs amuck with earth shattering implications for the economy and human lives. And the battle against both infections and transmissions is proving to be difficult, in terms of finance, institutional capacities and resource mobilization. How are we prepared as government, and as citizens, to embrace the impending mass-vaccinations? What are the chances of us  succeeding at this last-ditch effort to defeat the virus? What are the most pressing obstacles?

Does the work of vaccines spell an end to the pandemic anxieties?

Our panellists addressed the current state of mass-vaccination preparedness at the Botswana national level. What resources are available? What are the financial, institutional and administrative operational challenges (costs and supply chains, delivery, distribution, administering the vaccine on time, surveillance and security of vaccines?) What is being done to overcome them, or what can be done to overcome them? What do public assessments of preparedness tell us at the local community levels? How strong is the political will and direction? How long can we expect the whole exercise to last? At what point should we start seeing tangible results of the mass-vaccination campaign?

They also addressed the challenges of the anticipated emerging Vaccinated Society. How to fight the myths of vaccines and the superstitions about histories of human immunizations? What exactly is being done to grow robust local confidence in the science of vaccinations and the vaccines themselves? More significantly, how to square these campaigns vis-vis personal rights, moral/religious obligations?

What messages are being sent out in these regards and how are Batswana responding? What about issues of justice and equality? Will we get the necessary vaccines to everyone who wants them? What is being done to ensure no deserving person is left behind?

They also addressed issues of health data. To accomplish this mass-vaccination campaign and do everything right we need accurate and complete data. Poor data already makes it very hard to just cope with the disease. What is being done to improve data for the mass-vaccination campaign? How is this data being collected, aggregated and prepared for real life situation/applications throughout Botswana in the coming campaign?

We know in America, for example, general reporting and treatment of health data at the beginning of vaccinations was so poor, so chaotic and so scattered mainstream newspapers like The Atlantic, Washington Post and the New York Times had to step in, working very closely with civil society organizations, to rescue the situation. What data-related issues are still problematic in Botswana?

To be specific, what kind of Covid-19 data is being taken now to ready the whole country for an effective and efficient mass-vaccination program?

Batswana must be made aware that the  end part of vaccination will just mark the beginning of a long journey to health recovery and national redemption; that in many ways Covid-19 vaccination is just another step toward the many efforts in abeyance to fight this health pandemic, the road ahead is still long and painful.

For this purpose, and to highlight the significance of this observation we tasked our panellists with  the arduous imperative of  analysing the impact of mass-vaccination on society and the economy alongside the pressing issues of post-Covid-19 national health surveillance and rehabilitation programs.

Research suggests the aftermath of Covid-19 vaccination is going to be just as difficult and uncertain world as the present reality in many ways, and that caution should prevail over celebration, at least for a long time. The disease itself is projected to linger around for some time after all these mass-vaccination campaigns unless an effort is made to vaccinate everyone to the last reported case, every nation succeeds beyond herd immunity, and cure is found for Covid-19 disease. Many people are going to continue in need of medications, psychological and psychiatric services and therapy.

Is Botswana ready for this long holdout? If not, what path should we take going into the future? The Second concern is , are we going to have a single, trusted national agency charged with the  mandate to set standards for our national health data system, now that we know how real bad pandemics can be, and the value of data in quickly responding to them and mitigating impact? Finally, what is being done to curate a short history of this pandemic? A national museum of health and medicine or a Public Health Institute  in Botswana is overdue.

If we are to create strong sets of data policies and data quality standards for fighting future health pandemics it is critical that they find ideological and moral foundations in the artistic imagery and photography of the present human experience…context is essential to fighting such diseases, and to be prepared we must learn from every tragic health incident.

Our panellists answered most of these questions with distinguished intellectual clarity. We wish Batswana to join us in our second Mass-vaccination workshop.

*Oscar Motsumi: Email:oscar.motsumi@gmail.com

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The women you see in the news matter. Here’s why

9th March 2021
Jane Godia

Jane Godia

Today is International Women’s Day – it’s a moment to think about how much better our news diet could be if inequities were eliminated. In 1995, when the curtains fell in one of the largest meetings that have ever brought women together to discuss women in development, it was noted that women and media remain key to development.

Twenty-six years later, the relevant “Article J” of the Beijing Platform for Action, remains unfulfilled. Its two strategic objectives with regard to Women and Media have not been met. They are
Increase the participation and access of women to expression and decision-making in and through the media and new technologies of communication

Promote a balanced and non-stereotyped portrayal of women in the media.

Today, as we mark International Women’s Day, it’s an indictment on both media owners and civil society that women remain on the periphery of news-making. They cannot claim equal space in either the structures of newsrooms or in the content produced, be that as sources of news or as the subjects of reports. Indeed, the latest figures from WAN-IFRA’s Women in News Programme show just one in five voices in news belong to women*, be they as sources, as the author or as the main character of the news report.

Some progress was evident several years back, with stand-out women being named as chief executive officers, editors in chief, managing editors and executive editors. But these gains appear short lived in most media organisations. Excitement has turned to frustration as one-step forward has been replaced with three steps backwards. In Africa, the problem is acute. The decision-making tables of media organisations remain deprived of women and where there are women, they are surrounded by men.

Few women have followed in the footsteps of Esther Kamweru, the first woman managing editor in Kenya, and indeed sub-Saharan Africa. Today’s standout women editors include Pamela Makotsi-Sittoni (Nation Media Group, Kenya), Barbara Kaija (New Vision, Uganda), Mary Mbewe (Daily Nation, Zambia), Margaret Vuchiri (The Monitor, Uganda), Joyce Shebe (Clouds, Tanzania), Tryphinah Dongwana (Weekend Post, Botswana), Joyce Mhaville (Independent Television -ITV, Tanzania) and Tuma Abdallah (Standard Newspapers,Tanzania). But they remain an exception.

The lack of balance between women and men at the table of decision making has a rollback effect on the content that is produced. A table dominated by men typically makes decisions that benefit men.

So today, International Women’s Day is a grim reminder that things are not rosy in the news business. Achieving gender balance in news and in the structure of media organisations remains a challenge. Unmet, it sees more than half of the population in our countries suffer the consequences of bias, discrimination and sexism.

The business of ignoring the other half of the population can no longer be treated as normal. It’s time that media leaders grasp the challenge, not only because it is the right thing to do, but because it also makes a whole lot of business sense: start covering women, give them space and a voice in news-making and propel them to all levels of decision making within your organisation.

We can no longer afford to imagine that it’s only men who make and sell the news and bring in the shillings to fund the media business. Women too are worthy newsmakers. In all of our societies, there are women holding decision making positions and who are now experts in once male-only domains such as engineers, doctors, scientists and researchers.

They can be deliberately picked out to share their perspectives and expertise and bring balance to the profile of experts quoted on our news pages. Media is the prism through which society sees itself and women are an untapped audience. So, as we celebrate International Women’s Day, let us embrace diversity, which yields better news content and business products, and in so doing eliminate sexism. We know that actions and attitudes that discriminate against people based on their gender is bad for business.

As media, the challenge is ours. We need to consciously embrace and reach the commitments made 26 years ago when the Beijing Platform for Action was signed globally. As the news consuming public, you have a role to play too. Hold your news organization to account and make sure they deliver balanced news that reflects the voices of all of society.

Jane Godia is a gender development and media expert who serves as the Africa Director of Women in News programme.  
WOMEN IN NEWS is WAN-IFRA’s ground-breaking programme to increase women’s leadership and voices in the news. It does so by equipping women journalists and editors with the skills, strategies, and support networks to take on greater leadership positions within their media. www.womeninnews.org

Jane Godia, Director, Africa, Women in News

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Why is the media so afraid to talk about sexual harassment?

9th March 2021

MELANIE WALKER

The eve of International Women’s Day presents an opportunity for us to think about gender equality and the long and often frustrating march toward societies that are truly equal.

As media, we are uniquely placed to drive forward this reflection and discussion. But while focusing on the challenges of gender in society, we owe it to our staff and the communities we serve to also take a hard look at the obstacles within our own organisations.

I’m talking specifically about the scourge of sexual harassment. It’s likely to have happened in your newsroom. It has likely happened to a member of your team. It happens to all genders but is disproportionately directed at women. It happens in every industry, regardless of country, culture or context. This is because sexual harassment is driven by power, not sex. Wherever you have imbalances in power, you have individuals who are at risk of sexual harassment, and those who abuse this power.

I’ve been sexually harassed. The many journalists and editors, friends and family members who I have spoken to over the years on this subject have also been harassed. Yet it is still hard for leaders to recognize that this could be happening within their newsrooms and boardrooms. Why does it continue to be such a taboo?

Counting the cost of sexual harassment

Sexual harassment is, simply put, bad for business. It can harm your corporate reputation. It is a drain on the productivity of staff and managers. Maintaining and building trust in your brand is an absolute imperative for media organisations globally. If and when a case gets out of control or is badly handled – this can directly impact your bottom line.

It is for this reason that WAN-IFRA Women in News has put eliminating sexual harassment as a top priority in our work around gender equality in the media sector. This might seem at odds with the current climate where social interactions are fewer and remote work scenarios are in place in many newsrooms and businesses. But one only needs to tune into the news to know that the abuse of power, manifested as verbal, physical or online harassment, is alive and well.

Preliminary results from an ongoing Women in News research study into the issue of sexual harassment polling hundreds of journalists in Sub-Saharan Africa and Southeast Asia indicate that more than 1 in 3 women media professionals have been physically harassed, and just under 50% have been verbally harassed. Just over 15% of men in African newsrooms reported being physically harassed, and slightly less than 1 in 4 reports being verbally harassed. The numbers for male media professionals in Southeast Asia are slightly higher than a quarter on both forms of harassment.

The first step in confronting sexual harassment is to talk about it. We need to strip away the stigma and discomfort around having open conversations about what sexual harassment is and isn’t. Media managers, it is entirely in your power to create dynamics in your own teams that are free from sexual harassment.

Publishers and CEOs, you set the organisational culture in your media company.

By being vocal in recognising that it happens everywhere, and communicating to your employees that you will not tolerate sexual harassment of any kind, you send a powerful message to your teams, and publicly. With these actions, you will help us overcome the legacy of silence around this topic, and in doing so take an important first step to create media environments that truly embrace equality.

Melanie Walker is Executive Director of Media Development of the World Association of News Publishers (WAN-IFRA). She is a creator of Women in News, WAN-IFRA’s ground-breaking programme to increase women’s leadership and voices in the news. It does so by equipping women journalists and editors with the skills, strategies, and support networks to take on greater leadership positions within their media. www.womeninnews.org

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